In March 2021, a federal jury in Florida will hear opening arguments in a case involving allegedly defective earplugs supplied to members of the United States Armed Forces.
The earplug manufacturer, 3M Corporation, has already settled False Claims Act allegations regarding its earplugs for over $9 million.
However, legal experts have pointed out that this settlement was for defrauding the Federal Government, and not for injured and impacted servicemembers.
The case pending before Pensacola Judge Casey Rodgers concerns such injuries. Observers predict that victims will have an easier time establishing liability, since Judge Rodgers threw out a key defense asserted by 3M during pretrial hearings.
3M earplug victims remain hopeful that the claims can be settled out of court, but talks have yet to begin in earnest.
In an attempt to shift blame, 3M claimed in a statement that the “Combat Arms Earplugs Version 2 product is effective and safe to use, and its design reflected the direction and feedback of individuals acting on the military’s behalf.”
Types of Product Defects
At issue here is a design defect contained in 3M’s Dual-Ended Combat Arms earplugs.
These devices resemble two very small triangle-shaped ice cream cones which are face to face and contains a filter which allows soft sounds to pass and blocks louder sounds.
The cones, however, are not quite big enough to enclose the filter. The resulting gap, though not much thicker than a fingernail, allows harmful sounds to enter the ear.
The damage is especially acute when servicemembers used the earplugs at the range, aboard aircraft or in kinetic situations.,
One possible theory is that designers sacrificed protection for comfort. Had the cones been bigger or closer together, the earplug may not have been as comfortable.
Designers may have believed that if the earplugs were not comfortable, servicemembers wouldn’t wear them.
Numerous other products have suffered from manufacturing defects.
Often an item will look fine on the drawing board, but an error in the manufacturing process or the use of cheap components will render the product unsafe.
Metal-on-metal hip implants, which used parts manufactured in China are an example of both these kinds of defects.
Some of the parts makers were shown to have taken shortcuts during the manufacturing process.
In fact, some parts weren’t manufactured at all. Instead, the companies used 3-D printers to make them. Other Chinese hip implant parts had high levels of heavy metals.
Cadmium, mercury, and other such elements contribute to tissue death. These elements can also migrate to the brain and cause cognitive impairments.
Resolving Defective Products Claims
Federal courts usually consolidate cases like the 3M earplug and other mass tort claims, at least for pretrial purposes.
A single judge oversees issues like discovery and settlement negotiations. Typically, the judge appoints a special master who has some specific expertise in a given area.
Bellwether cases (cases that represent or contain most or all of the issues to be decided) return to home jurisdictions for trial.
These trials help both sides better evaluate their claims and defenses. Frequently, manufacturers say things like “we’ll see you in court” until one or two bellwether verdicts go the other way. Then, they are ready to make a deal.
A third-party mediator usually directs subsequent settlement negotiations. During court-supervised mediation, both parties have an obligation to negotiate in good faith.
So, they must be willing to make compromises in order to reach agreements.
Damages in defective product and other mass tort claims usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Additional punitive damages are typically available as well.
Money is the only language these companies speak.
So, unless punitive damages are high, they will not change the way they conduct business, and they will continue to put profits before people.
If a defective product injured you or a loved one, call the experienced personal injury attorneys at Napoli Shkolnik PLLC. We also have offices nationally. We do not charge upfront legal fees and only recover a fee when we win your case.